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United States v. Straub,
No. 07-30182 (9th Cir., August 15, 2008): Immunity: This is a very instructive case that clarifies Ninth Circuit law on the concept of "use immunity" to defense witnesses and when such immunity is compelled by Due Process concerns. Basically, in this prosecution of gang members, the government granted immunity to one of its witnesses but refused to grant immunity to a defense witness who would have contradicted the government witness. The panel reversed the district court's denial of use immunity to the defense witness and clarified Ninth Circuit law on the issue thusly: "We now hold that for a defendant to compel use immunity the defendant must show: (1) the defense witness's testimony was relevant; and (2) either (a) the prosecution intentionally caused the defense witness to invoke the Fifth Amendment right against self-incrimination with the purpose of distorting the fact-finding process; or (b) the prosecution granted immunity to a government witness in order to obtain that witness's testimony, but denied immunity to a defense witness whose testimony would have directly contradicted that of the government witness, with the effect of so distorting the fact-finding process that the defendant was denied his due process right to a fundamentally fair trial."
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